The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-01-19

lh0 Ooh1i "SI 40 oet"eeH the parties 10 IL, |
when it came into being"
Looking at the act of 1867, whose |
purpose was to authorize the creation |
of liens not known before" it is found |
that it provides for liens upon crops in |
favor OF persons furnishing supplies |
necessary for the cultivation of farms
or plantations. In its 9TH Section it
declares "that it shall be lawful to con-
vey by way of mortgage or deed of
trust, any crop of cotton, corn or agri-
cultural product, being produced or to
be produced within fifteen months from
the date of such mortgage" What lien
not known before, may be created under
this section?
In this case, decided at the April
term 1876, the court seem to be
careful to limit the validity of the
contract for lien upon the crops to be
grown, to a controversy between the
parties to the contract Gas between
| the parties" to the contract the stipula-
ton for lien is valid and enforceable
in equity. But in EUernsan q. Rob5, SO
Miss, p. 653, decided at the October
term following, the court say; eve
held in the case of White q. Thomas ct al.
that the reservation of lien in lease
on the annual crops would be enforced
in court of chancery between the
parties. We now take the further step,
and declare that the lien retained by
Robb on the annual crops to be grown
during the term, as security for his
rent, was not only good between the
immediate parties, but was superior and
paramount to the mortgage of Everman
& Co., they, by reason of the registra-
ton having notice of Robb's equity.
Registration of the lease was notice to
subsequent purchasers and creditors
who dealt with the lessees in respect of
the cotton at their peril" In the case
of EUerman d Co. q Rob-, the lien was
given to secure rent, and this fact is
adverted to by Judge Simrall in the
opinion; but the argument in support
of the decision is as good to uphold a
lien to secure the payment of any other
kind of Indebtedness, as it is to uphold a
lien to secure the payment of rent. No
distinction between lien to secure rent
and a lien to secure any other kind of
| Indebtedness was made in the case of
White y. Thomas ct al. In fact the bill
| which was sustained in that case sought
to collect the rent, as well as damages
suffered by the lessor on account of the
failure by the lessee to lido certain work
that he had stipulated to d..
Und oubtedly growing crop could be
encountered before the passage of the
act of 1867. Cayee y. Stouah, Supra. And
if, as seems to have been decided, an
owner of lands or a lessee, for term
long enough to make crop, could en-
cumber crop to be grown, then Sec
ton of the act of 1867 conferred no
privilege or power on such owner or
lessee. 1t must be, then, that the object
of the section was to authorize persons
who owned no interest in lands to give
mortgages and deeds of trust on crops to
be grown, and that the limitation of if
teen months was intended to apply 10
them.
If it be said that some effect should
be given to the declaration in section Z,
that it shall be lawful to cucumber
growing crops" it may be replied that
it was suggested by the provisions of
section 6 of the same act which makes it
unlawful ito levy ON or sell II
any crop of cotton, corn or other agri-
cultural product while the same is
under cultivation and before it is
matured and gathered" Growing crops
may not be levied on (section 81, but
they may be encountered (section y.
From what has been said it may safe
ly be concluded:
l. That 1859 of the Code conferred |
no'new privilege on owners of land, or |
lessees for term within which crop |
could be made.
.. That independently of said section
such owners and lessees could make |
valid mortgages and deeds If trust on |
crops to be grown, and can do so now
notwithstanding the repeal of the Sec
ton.
g. That the section did confer new |
privilege on persons who were neither |
the owners of land nor lessees for a /
term within which crop could be |
made, viz: the right to execute a mort
gage on crop to be grown within fif-
teen months, which such persons may
not do since the section was repealed.
There is no rule of construction that
would require the courts to give an
effect to the repeal of 1859 different
from that announced in the foregoing
conclusions, whether it be considered as
a statute afirmatory of aprior law, or an
amendment to prior law, or as partly
afirmatory and partly amendatory. The
right TO cucumber a growing crop ex-
listed in this State before the enactment /
of that section or its predecessor, section
Z of the act of 1867; and the right to en-
cumber a crop to be grown was also
in existence as part Of the equitable sys-
tenn engrafted on the Jurisprudence of
the State by the chancery courts; and
under the rule laid down by Mr..
Bishop, that without fepugnance, no
statute, except by express words or af-
firmative implication. operates as re-
peal OF the prior law, whether statutory
or common, the prior Law of this State
was not affected BY the amendment of
the provisions Of 3 1882 The rule is
more strongly stated by the same author
as follows: The just doctrine is that
without exception statute in affirma-
tive terms with no intimation of an in
tent to repeal prior laws. does not repeal
them unless the new and the old are
irreconcilably in conflict"
But even II the enactment Of the pro-
visions Of I 1859 operated = repeal Of